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Dubuque Initiatives_Roshek Building_Amendment to Development AgreementAMENDMENT T®DEVEL®PMENT AGREEMENT " ' This Amendment to Development Agreement ("Amendment") is dated the ~;~~' , ~~ day of '' , 2009, by and between the City of Dubuque, Iowa, a municipality ("City") established pursuant to the Iowa Code and acting under the authorization of Iowa Code Chapter 403, as amended, and Dubuque Initiatives, an Iowa-not-for-profit corporation (the "Developer"). WITNESSETH: WHEREAS, the City and Developer are parties to a Development Agreement dated February 17, 2009 (the "Original Agreement") relating to the redevelopment of the Roshek Building located generally at 700 Locust Street in the City (defined in the Original Agreement as the "Property"); and WHEREAS, Section 2.1 of the Original Agreement obligates the Developer to undertake the construction of certain Minimum Improvements (as defined in the Original Agreement) on the Property; and WHEREAS, Section 3.3 of the Original Agreement obligates the City to provide a guarantee of certain indebtedness to be incurred by Developer in connection with the construction by Developer of said Minimum Improvements; and WHEREAS, the City and the Developer desire to amend the Original Agreement so as to facilitate the use of new market and historic tax credits in connection with the redevelopment of the Roshek Building, which require the creation of certain intermediary parties by the Developer and the extension of the City's guarantee of indebtedness to said intermediary parties. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree as follows: Section 1. Amendment of Section 2.1. Section 2.1 of the Original Agreement is hereby amended by deleting the existing provision and substituting the following as a new Section 2.1: 2.1. Required Minimum Improvements. Developer, either directly or acting through one or more intermediary entities created by Developer pursuant to this Section, agrees to rehabilitate, construct and improve approximately 255,000 square feet of office/retail space on the Property at an estimated cost of Thirty Nine Million ($39,000,000) as follows: approximately 130,000 square feet to accommodate Employer's requirements (the Employer Minimum Improvements) and the balance for Developer's requirements (the Developer Minimum Improvements) (referred to collectively as the Minimum Improvements). For purposes of the foregoing, Developer may form one or more corporations or limited liability companies for the purpose of obtaining new market and historic tax credits in connection with the construction of the Minimum Improvements, and may transfer the Property to such an intermediary entity, so long as the Developer retains effective control of any and all such intermediate entities and the charter documents for such entities and the terms of such any such transfer of the Property are approved by the City Manager. The Developer shall remain fully responsible for all of its obligations under this Agreement, notwithstanding any transfer of the Property or the creation of such intermediary entities. Section 2. Amendment of Subsection 3.3(1). Subsection 3.3(1) of the Original Agreement is hereby amended by deleting the existing provision and substituting the following as a new subsection 3.3(1): (1) City shall provide guarantees, in the forms attached hereto as Exhibit D (collectively, the Guaranty), on behalf of certain entities, including but not limited to Developer, for the purpose of securing equity investments and loans in order to finance the rehabilitation, construction and improvement of the Property (collectively, the Minimum Improvements Loan), in the aggregate maximum principal amount of not to exceed $25,000,000. In consideration for the Guaranty, Developer agrees that any grants and tax credits received by Developer or which accrue to the benefit of Developer or the Property shall be applied to the balance of the principal of the Minimum Improvements Loan or to pre-Minimum Improvements Loan development costs. Section 3. Amendment of Guaranty. The form of Guaranty Agreement attached to the Original Agreement as Exhibit D is hereby amended by deleting the existing Exhibit D and substituting the attached Exhibit D. Section 4. Ratification. All other provisions of the Original Agreement are hereby ratified, confirmed and approved. CITY OF DUBUQUE, IOWA i By: -; ~; Roy D. Burl, Mayor ATTEST: P~~ ~y°"~ ~ / By: ~~~ ~,,~,~ ~,,/, ,~_,,° ,, Jeanne F. Schneider, City Clerk DUBUQUE INITIATIVES ~~ By: -~ William H. Callahan, President EXHIBIT D REVISED FORMS OF GUARANTY AGREEMENT DCORNELL/ 610219.1 /MSWord\10422.086 GUA NTY AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA, AS GRANTOR AND DUBUQUE BANK & TRUST COMPANY (Leverage/FHTC Bridge/IBM Loans) THIS GUARANTY AGREEMENT is made and entered into as of 2009 ("the Guaranty"), by and between the City of Dubuque, Iowa, a municipal corporation duly organized and existing under the laws of the State of Iowa and acting pursuant to Chapters 15A and 403 of the Code of Iowa, as amended ("Guarantor"), and Dubuque Bank & Trust Company ("DB&T"), as lead lender, for itself and the assignees and/or participants of the Loan ("Banks"). WITNESSETH: WHEREAS, Banks intend to make loans to .Roshek Building Investment Fund, LLC ("Borrower") in the aggregate principal amount of not to exceed $ (together, "the Loan"), pursuant to a Loan Agreement dated as of , 2009 between DB&T and Borrower ("the Agreement"); and WHEREAS, the proceeds derived from the Loan shall be used by the Borrower to make qualified equity investments in certain community development entities that will make qualified low income community investment loans to Roshek Building QALICB, LLC, which qualified low income community investment loans will be applied to the payment of costs associated with the rehabilitation, renovation, and improvement of office/retail space in the Roshek Building located generally at 700 Locust Street, Dubuque, Iowa ("the Project"), in fulfillment of the obligations of Dubuque Initiatives ("DI") under that certain Development Agreement dated February 17, 2009 between and among Guarantor and DI ("the Development Agreement"); and WHEREAS, Guarantor desires -that Banks make the Loan and is willing to enter into this Guaranty in order to secure the payment of the Loan and as an inducement to DB&T to enter into the Agreement. NOW, THEREFORE, in consideration of DB&T entering into the Agreement and as an inducement to Banks to make the Loan, Guarantor does hereby, subject to the terms hereof, covenant and agree with DB&T as follows: SECTION 1. REPRESENTATIONS AND WARRANTIES OF GUARANTOR. Guarantor hereby represents and warrants: 1.1. It is a municipal corporation under the laws of the State of Iowa with the power to enter into this Guaranty and has duly authorized the execution and delivery of this Guaranty, and neither this Guaranty nor the agreements herein contained or the transactions contemplated hereby contravene or constitute a default under any agreement, instrument or indenture or any other agreement or requirement of law by which Guarantor is bound. 1.2. This Agreement, upon execution and delivery by Guarantor (assuming due authorization, execution and delivery by DB&T, is a valid and legally binding instrument of Guarantor, enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. 1.3 The undertaking of the Project by Borrower pursuant to the Development Agreement is in the vital and best interests of Guarantor and in accord with the public purposes and provisions of the applicable federal, state and local laws and the requirements under which the Project has been undertaken and is being assisted, and the Development Agreement and this Guaranty are necessary to promote and further the economic development of the City of Dubuque, and will result in the creation and maintenance of jobs within the City, as authorized and defined in Section 15A.1 of the Code of Iowa, as amended. SECTION 2. COVENANTS AND AGREEMENTS. 2.1. Unconditional Guaranty. Guarantor hereby unconditionally and irrevocably guarantees to Banks that (a) the full and prompt payment of the principal on the Loan when and as the same shall become due, whether at the stated maturity thereof, by acceleration, or otherwise, and (b) the full and prompt payment of all interest on the Loan when and as the same shall become due. All payments by Guarantor shall be paid in lawful money of the United States of America. Each and every default in payment of the principal of or interest on the Loan shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. 2.2. Notice to Guarantor to Perform Under Guaranty. If Borrower should at any time fail to make any of the payments required under the Agreement as and when said payments become due and payable, Guarantor hereby unconditionally covenants that it shall make said payments within thirty (30) days after receipt by Guarantor of written notice of such failure to pay from DB&T. 2.3. Guaranty to Remain in Force Until Full Payment. The obligations of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable and shall remain in full force and effect until the aggregate principal amount of the Loan outstanding and all interest due thereon shall have been paid in full and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to, or the consent of, Guarantor. 2 (1) the compromise, settlement, release or termination of any or all of the obligations, covenants or agreements of Borrower under the Agreement; (2) the failure to give notice to Guarantor of the occurrence of an event of default under the terms and provisions of this Guaranty or the Agreement; (3) the assignment, transfer or mortgaging or the purported assignment, transfer or mortgaging of all or any part of the interest of Borrower in the Project or any failure of title with respect to Borrower's interest in the Project; (4) the waiver of the payment, performance or observance by Borrower or Guarantor of any of the obligations, covenants or agreements of them contained in the Agreement or this Guaranty; (5) the extension of the time for payment of any principal of or interest on the Loan or under this Guaranty or of the time for performance of any other obligations, covenants or agreements under or arising out of the Agreement or this Guaranty or the extension or the renewal of either thereof; (6) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Agreement; (7) the taking or the omission of any of the actions referred to in the Agreement and any actions under this Guaranty; (8) any failure, omission, delay or lack on the part of DB&T to enforce, assert or exercise any right, power or remedy conferred on DB&T in this Guaranty or the Agreement, or any other act or acts on the part of Banks; (9) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting Guarantor or Borrower or any of the assets of them, or any allegation or contest of the validity of this Guaranty in any such proceeding; (10) to the extent permitted by law, the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty by operation of law; (11) the default or failure of Guarantor fully to perform any of its obligations set forth in this Guaranty, provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this paragraph that the obligation of 3 Guarantor shall be absolute, unconditional and irrevocable to the extent herein specified and shall not be discharged, impaired or varied except by the payment of the principal of and interest on the Loan in accordance with the terms of the Agreement. Without limiting any of the other terms or provisions hereof, it is understood hereunder, there shall be no obligation on the part of Banks to resort in any manner or form for payment to Borrower or to any other person, firm or corporation, their properties or estates. 2.4. Liability Not Affected by Bankruptcy. Without limiting the foregoing, it is specifically understood that any modification, limitation, or discharge of the liability of Guarantor hereunder arising out of or by virtue of any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under Federal or State law hereafter initiated by or against Guarantor shall not affect, modify, limit, or discharge the liability of Guarantor hereunder in any manner whatsoever and this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceedings had not been instituted; and it is the intent and purpose of this Guaranty and the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding and the Guarantor agrees that it shall be liable for an amount equal to the full amount of payments payable under the terms of the Agreement, irrespective and without regard to any modification, limitation, or discharge of the liability of the Guarantor that may result from any such proceeding. 2.5. Right to Proceed Against Guarantor. (a) In the event of a default in the payment of principal of the Loan when and as the same shall become due, whether at the stated maturity thereof, by acceleration, or otherwise, or in the event of a default in the payment of any interest on the Loan when and as the same shall become due, DB&T may, in its sole discretion, have the right to proceed first and directly against Guarantor under this Guaranty without proceeding against or exhausting any other remedies which it may have and without resorting to any other security held by Banks. (b) DB&T represents and warrants to Guarantor and agrees with Guarantor that (i) pursuant to its arrangements with the Banks, DB&T is and shall be the sole and exclusive party entitled to pursue any claims against Guarantor that may arise under this Guaranty, notwithstanding any rights Banks may have as third party beneficiaries of this Guaranty, and (ii) DB&T shall indemnify and hold the City harmless from any breach of the representations, warranties and agreements set forth in clause (i) of this subsection, including but not limited to the reasonable costs and expenses (including attorneys' fees) incurred by City in connection with any claims made by parties other than DB&T under this Guaranty. 2.6. Waiver of Notice and Reliance on Guaranty notice from Banks of their acceptance and relianc agrees to pay all costs, expenses and fees, includin which may be incurred in enforcing or attempting to Guarantor expressly waives e on this Guaranty. Guarantor g all reasonable attorneys' fees, enforce this Guaranty following 4 any default on the part of Guarantor hereunder, whether the same shall be enforced by suit or otherwise. 2.7 Limitation on Guaranty. DB&T hereby acknowledges that, pursuant to Section 3.3 of the Development Agreement, the Guarantor, in addition to guaranteeing the Loan, also is guaranteeing that certain loan from DB&T and the Banks to DI in the principal amount of not to exceed $ ("the SHTC Bridge Loan"), and all such additional financing shall be used connection with the rehabilitation, construction and improvement Project. Notwithstanding anything contained herein or in the Agreement to the contrary, the aggregate maximum principal amount of the obligation of the Guarantor under this Guaranty, and the guaranty of the SHTC Bridge Loan shall not exceed Twenty Five Million and No/100 Dollars ($25,000,000.00); provided, however, that the foregoing shall not limit Guarantor's obligation to DB&T under Section 2.6 hereof. SECTION 3. MISCELLANEOUS. 3.1. Obligations Absolute and Unconditional. The obligations of Guarantor hereunder shall arise absolutely, unconditionally and irrevocably, when the Loan shall have been made to Borrower by Banks. 3.2. Nonexclusive Remedy; Notice; Waiver; Amendment. No remedy herein conferred upon or reserved to DB&T is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Guaranty or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default, omission or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof; but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle DB&T to exercise any remedy reserved to it in this Guaranty, it shall not be necessary to give any notice, other than such notice as may be herein expressly required. In the event any provision contained in this Guaranty should be breached by Guarantor and thereafter duly waived by DB&T, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver, amendment, release or modification of this Guaranty shall be established by conduct, custom or course of dealing, but solely by an instrument in writing duly executed by DB&T. 3.3. Annual Audit and Financial Statements. Guarantor shall keep proper books of record and account in accordance with generally accepted principles of accounting as the same apply to governmental entities and will furnish to Banks as soon as available and in any event within 180 days after the close of each fiscal. year of Guarantor, a copy of the annual financial statements of Guarantor for such fiscal year all as prepared and certified by a firm of independent certified public accountants. 5 3.4. Entire Agreement. This Guaranty constitutes the entire agreement and supersedes all prior agreements between the parties with respect to the subject matter hereof and may be executed simultaneously in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 3.5. Severability. The invalidity or unenforceability of any one or more phrases, sentences, clauses or sections in this Guaranty shall not affect the validity or enforceability of the remaining portions of this Guaranty, or any part thereof. 3.6. Release. Upon full payment of the principal of and interest on the Loan in accordance with the Agreement, this Guaranty shall by its terms terminate and, upon request by Guarantor, DB&T shall release Guarantor from the provisions of this Guaranty in writing. 3.7. Applicable Law. This Guaranty shall be governed by and construed in accordance with the laws of the State of Iowa. [Remainder of Page Intentionally Left 131ank] 6 IN WITNESS WHEREOF, Guarantor and DB&T have caused this Guaranty to be executed as of the date first above written. CITY OF DUU~UE, I®WA ®UUQUE BANFC TRUST COMPANY By: By: Roy D. Buol, Mayor Its: ATTEST: By: Jeanne F. Schneider, CMC City Clerk DCORNELU 610930.1 lMSWord110422.OS7 Signature Page -City Guaranty ([LeveragelFHTC Bridge] Loan} GUARANTY AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA, AS GRANTOR AND DUBUQUE BANK & TRUST COMPANY (SHTC Bridge Loan) THIS GUARANTY AGREEMENT is made and entered into as of 2009 ("the Guaranty"), by and between the City of Dubuque, Iowa, a municipal corporation duly organized and existing under the laws of the State of Iowa and acting pursuant to Chapters 15A and 403 of the Code of Iowa, as amended ("Guarantor"), and Dubuque Bank & Trust Company ("DB&T"), as lead lender, for itself and the assignees and/or participants of the Loan ("Banks"). WITNESSETH: WHEREAS, Banks intend to make a loan to Dubuque Initiatives ("Borrower") in the principal amount of not to exceed $ ("the Loan"), pursuant to a Loan Agreement dated as of 2009 between DB&T and Borrower ("the Agreement"); and WHEREAS, the proceeds derived from the Loan shall be used to fund a capital contribution Roshek Building, Inc., which shall make a corresponding capital contribution to Roshek Building QALICB, LLC ("the QALICB"), which capital contribution shall be used by the QALICB to pay costs associated with the rehabilitation, renovation, and improvement of office/retail space in the Roshek Building located generally at 700 Locust Street, Dubuque, Iowa ("the Project"), in fulfillment of the Borrower's obligations under that certain Development Agreement dated February 17, 2009 between and among Guarantor and Borrower ("the Development Agreement"); and WHEREAS, Guarantor desires that Banks make the Loan and is willing to enter into this Guaranty in order to secure the payment of the Loan and as an inducement to DB&T to enter into the Agreement. NOW, THEREFORE, in consideration of DB&T entering into the Agreement and as an inducement to Banks to make the Loan, Guarantor does hereby, subject to the terms hereof, covenant and agree with DB&T as follows: SECTION 1. REPRESENTATIONS AND WARRANTIES OF GUARANTOR. Guarantor hereby represents and warrants: 1.1. It is a municipal corporation under the laws of the State of Iowa with the power to enter into this Guaranty and has duly authorized the execution and delivery of this Guaranty, and neither this Guaranty nor the agreements herein contained or the transactions contemplated hereby contravene or constitute a default under any agreement, instrument or indenture or any other agreement or requirement of law by which Guarantor is bound. 1.2. This Agreement, upon execution and delivery by Guarantor (assuming due authorization, execution and delivery by DB&T, is a valid and legally binding instrument of Guarantor, enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. 1.3 The undertaking of the Project by Borrower pursuant to the Development Agreement is in the vital and best interests of Guarantor and in accord with the public purposes and provisions of the applicable federal, state and local laws and the requirements under which the Project has been undertaken and is being assisted, and the Development Agreement and this Guaranty are necessary to promote and further the economic development of the City of Dubuque, and will result in the creation and maintenance of jobs within the City, as authorized and defined in Section 15A.1 of the Code of Iowa, as amended. SECTION 2. COVENANTS AN®AGREEMENTS. 2.1. Unconditional Guarantv. Guarantor hereby unconditionally and irrevocably guarantees to Banks that (a) the full and prompt payment of the principal on the Loan when and as the same shall become due, whether at the stated maturity thereof, by acceleration, or otherwise, and (b) the full and prompt payment of all interest on the Loan when and as the same shall become due. All payments by Guarantor shall be paid in lawful money of the United States of America. Each and every default in payment of the principal of or interest on the Loan shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. 2.2. Notice to Guarantor to Perform Under Guaranty. If Borrower should at any time fail to make any of the payments required under the Agreement as and when said payments become due and payable, Guarantor hereby unconditionally covenants that it shall make said payments within thirty (30) days after receipt by Guarantor of written notice of such failure to pay from DB&T. 2.3. Guarantv to Remain in Force Until Full Payment. The obligations of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable and shall remain in full force and effect until the aggregate principal amount of the Loan outstanding and all interest due thereon shall have been paid in full and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to, or the consent of, Guarantor. 2 (1) the compromise, settlement, release or termination of any or all of the obligations, covenants or agreements of Borrower under the Agreement; (2) the failure to give notice to Guarantor of the occurrence of an event of default under the terms and provisions of this Guaranty or the Agreement; (3) the assignment, transfer or mortgaging or the purported assignment, transfer or mortgaging of all or any part of the interest of Borrower in the Project or any failure of title with respect to Borrower's interest in the Project; (4) the waiver of the payment, performance or observance by Borrower or Guarantor of any of the obligations, covenants or agreements of them contained in the Agreement or this Guaranty; (5) the extension of the time for payment of any principal of or interest on the Loan or under this Guaranty or of the time for performance of any other obligations, covenants or agreements under or arising out of the Agreement or this Guaranty or the extension or the renewal of either thereof; (6) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Agreement; (7) the taking or the omission of any of the actions referred to in the Agreement and any actions under this Guaranty; (8) any failure, omission, delay or lack on the part of DB&T to enforce, assert or exercise any right, power or remedy conferred on DB&T in this Guaranty or the Agreement, or any other act or acts on the part of Banks; (9) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting Guarantor or Borrower or any of the assets of them, or any allegation or contest of the validity of this Guaranty in any such proceeding; (10) to the extent permitted by law, the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty by operation of law; (11) the default or failure of Guarantor fully to perform any of its obligations set forth in this Guaranty, provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this paragraph that the obligation of Guarantor shall be absolute, unconditional and irrevocable to the extent 3 herein specified and shall not be discharged, impaired or varied except by the payment of the principal of and interest on the Loan in accordance with the terms of the Agreement. Without limiting any of the other terms or provisions hereof, it is understood hereunder, there shall be no obligation on the part of Banks to resort in any manner or form for payment to Borrower or to any other person, firm or corporation, their properties or estates. 2.4. Liability Not Affected by Bankruptcy. Without limiting the foregoing, it is specifically understood that any modification, limitation, or discharge of the liability of Guarantor hereunder arising out of or by virtue of any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under Federal or State law hereafter initiated by or against Guarantor shall not affect, modify, limit, or discharge the liability of Guarantor hereunder in any manner whatsoever and this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceedings had not been instituted; and it is the intent and purpose of this Guaranty and the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding and the Guarantor agrees that it shall be liable for an amount equal to the full amount of payments payable under the terms of the Agreement, irrespective and without regard to any modification, limitation, or discharge of the liability of the Guarantor that may result from any such proceeding. 2.5. Right to Proceed Against Guarantor. In the event of a default in the payment of principal of the Loan when and as the same shall become due, whether at the stated maturity thereof, by acceleration, or otherwise, or in the event of a default in the payment of any interest on the Loan when and as the same shall become due, DB&T may, in its sole discretion, have the right to proceed first and directly against Guarantor under this Guaranty without proceeding against or exhausting any other remedies which it may have and without resorting to any other security held by Banks. (b) DB&T represents and warrants to Guarantor and agrees with Guarantor that (i) pursuant to its arrangements with the Banks, DB&T is and shall be the sole and exclusive party entitled to pursue any claims against Guarantor that may arise under this Guaranty, notwithstanding any rights Banks may have as third party beneficiaries of this Guaranty, and (ii) DB&T shall "indemnify and hold the City harmless from any breach of the representations, warranties and agreements set forth in clause (i) of this subsection, including but not limited to the reasonable costs and expenses (including attorneys' fees) incurred by City in connection with any claims made by parties other than DB&T under this Guaranty. 2.6. Waiver of Notice and Reliance on Guaranty. Guarantor expressly .waives notice from Banks of their acceptance and reliance on this Guaranty. Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees, which may be incurred in enforcing or attempting to enforce this Guaranty following 4 any default on the part of Guarantor hereunder, whether the same shall be enforced by suit or otherwise. 2.7 Limitation on Guaranty. DB&T hereby acknowledges that, pursuant to Section 3.3 of the Development Agreement, the Guarantor, in addition to guaranteeing the Loan, also is guaranteeing (a) that certain loan from DB&T and the Banks to the Roshek Building Investment Fund, LLC (the "Fund") in the principal amount of not to exceed $ ("the Leverage Loan"), (b) that certain loan from DB&T and Banks to the Fund in the principal amount of not to exceed $ (the "IBM Loan"), and (c) that certain loan from DB&T and the Banks to the Fund in the principal amount of not to exceed $ ("the FHTC Bridge Loan"), and all such additional financing shall be used connection with the rehabilitation, construction and improvement Project. Notwithstanding anything contained herein or in the Agreement to the contrary, the aggregate maximum principal amount of the obligation of the Guarantor under this Guaranty, the guaranty of the Leverage Loan, the guaranty of the IBM Loan, and the guaranty of the FHTC Bridge Loan shall not exceed Twenty Five Million and No/100 Dollars ($25,000,000.00); provided, however, that the foregoing shall not limit Guarantor's obligation to DB&T under Section 2.6 hereof. SECTION 3. MISCELLANEOUS. 3.1. Obligations Absolute and Unconditional. The obligations of Guarantor hereunder shall arise absolutely, unconditionally and irrevocably, when the Loan shall have been made to Borrower by Banks. 3.2. Nonexclusive Remedy; Notice; Waiver; Amendment. No remedy herein conferred upon or reserved to DB&T is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Guaranty or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default, omission or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof; but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle DB&T to exercise any remedy reserved to it in this Guaranty, it shall not be necessary to give any notice, other than such notice as may be herein expressly required. In the event any provision contained in this Guaranty should be breached by Guarantor and thereafter duly waived by DB&T, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver, amendment, release or modification of this Guaranty shall be established by conduct, custom or course of dealing, but solely by an instrument in writing duly executed by DB&T. 3.3. Annual Audit and Financial Statements. Guarantor shall keep proper books of record and account in accordance with generally accepted principles of accounting as the same apply to governmental entities and will furnish to Banks as soon as available and in any event within 180 days after the close of each fiscal year 5 of Guarantor, a copy of the annual financial statements of Guarantor for such fiscal year all as prepared and certified by a firm of independent certified public accountants. 3.4. Entire Agreement. This Guaranty constitutes the entire agreement and supersedes all prior agreements between the parties with respect to the subject matter hereof and may be executed simultaneously in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 3.5. Severability. The invalidity or unenforceability of any one or more phrases, sentences, clauses or sections in this Guaranty shall not affect the validity or enforceability of the remaining portions of this Guaranty, or any part thereof. 3.6. Release. Upon full payment of the principal of and interest on the Loan in accordance with the Agreement, this Guaranty shall by its terms terminate and, upon request by Guarantor, DB&T shall release Guarantor from the provisions of this Guaranty in writing. 3.7. Applicable Law. This Guaranty shall be governed by and construed in accordance with the laws of the State of Iowa. [Remainder of Page Intentionally Left Blank 6 IN WITNESS WHEREOF, Guarantor and DB&T have caused this Guaranty to be executed as of the date first above written. CITY ®F ®U03UQUE, I®WA ®U13U~UE BANK °TRUST C®MPANY By: Roy ®. Buol, Mayor ATTEST: By: Jeanne F. Schneider, CMC City Clerk DCORNELL/ 610931.1 /MS Word\10422.037 By: Its: Signature Page -City Guaranty {SHTC Bridge Loan) To: Michael C. Van Milligen City Manager D,aTe: April 15, 2009 Re: Amendment to Development Agreement between the City of Dubuque, Iowa and Dubuque Initiatives Attached is a resolution approving an amendment to the Development Agreement between the City of Dubuque, Iowa and Dubuque Initiatives. On February 17, 2009, the City of Dubuque and Dubuque Initiatives entered into a Development Agreement relating to the redevelopment of the Roshek Building. Section 2.1 of the Development Agreement obligates Dubuque Initiatives to undertake the construction of certain minimum improvements and Section 3.3 of the Development Agreement obligates the City to provide a guarantee of certain indebtedness to be incurred by Dubuque Initiatives in connection with the construction of the minimum improvements. Dubuque Initiatives has requested an amendment to the Development Agreement to facilitate the use of new market and historic tax credits in connection with the redevelopment of the Roshek Building, which require the creation of certain intermediary parties by Dubuque Initiatives and the extension of the City's guarantee of indebtedness to the intermediary parties. Bond Council Bill Noth has drafted the attached amendment which incorporates those changes to the Development Agreement and has also modified the forms of the guarantee agreements accordingly. Copies of the modified guarantee agreements are also attached. I recommend that the resolution approving the amendment be submitted to the City Council for consideration and adoption. BAL:jmg OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org Preparers Barry A. Lindahl, Esq. Address: Suite 330, 300 Main Street, Dubuque, IA 52001 Telephone: (563) 583-4113 RESOLUTION NO. 128 -09 APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBUQE, IOWA AND DUBUQUE INITIATIVES 'WHEREAS, the City of Dubuque, Iowa ("City") and Dubuque Initiatives ("Developer") are parties to a Development Agreement dated February 17, 2009 (the "Original Agreement") relating to the redevelopment of the Roshek Building located generally at 700 Locust Street in the City (defined in the Original Agreement as the "Property"); and WHEREAS, Section 2.1 of the Original Agreement obligates the Developer to undertake the construction of certain Minimum Improvements (as defined in the Original Agreement) on the Property; and WHEREAS, Section 3.3 of the Original Agreement obligates the City to provide a guarantee of certain indebtedness to be incurred by Developer in connection with the construction by Developer of said Minimum Improvements; and WHEREAS, the City and the Developer desire to amend the Original Agreement so as to facilitate the use of new market and historic tax credits in connection with the redevelopment of the Roshek Building, which require the creation of certain intermediary parties by the Developer and the extension of the City's guarantee of indebtedness to said intermediary parties. NOW, THEREFORE, BE IT RSOLVED Y THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, AS FOLLOWS: Section 1. The Amendment. to Development Agreement attached hereto is hereby approved and the Mayor is authorized and directed to sign the Amendment on behalf of the City of Dubuque. Section 2. All other provisions of the Original Agreement are hereby ratified, confirmed and approved. Passed, approved and adopted this 20th day of April, 2009. Roy D. Boul, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk AMENDMENT TO DEVELOPMENT AGREEMENT This Amendment to Development Agreement ("Amendment") is dated the day of , 2009, by and between the City of Dubuque, Iowa, a municipality ("City") established pursuant to the Iowa Code and acting under the authorization of Iowa Code Chapter 403, as amended, and Dubuque Initiatives, an Iowa-not-for-profit corporation (the "Developer"). WITNES SETH: WHEREAS, the City and Developer are parties to a Development Agreement dated February 17, 2009 (the "Original Agreement") relating to the redevelopment of the Roshek Building located generally at 700 Locust Street in the City (defined in the Original Agreement as the "Property"); and WHEREAS, Section 2.1 of the Original Agreement obligates the Developer to undertake the construction of certain Minimum Improvements (as defined in the Original Agreement) on the Property; and WHEREAS, Section 3.3 of the Original Agreement obligates the City to provide a guarantee of certain indebtedness to be incurred by Developer in connection with the construction by Developer of said Minimum Improvements; and WHEREAS, the City and the Developer desire to amend the Original Agreement so as to facilitate the use of new market and historic tax credits in connection with the redevelopment of the Roshek Building, which require the creation of certain intermediary parties by the Developer and the extension of the City's guarantee of indebtedness to said intermediary parties. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree as follows: Section 1. Amendment of Section 2.1. Section 2.1 of the Original Agreement is hereby amended by deleting the existing provision and substituting the following as a new Section 2. L• 2.1. Required Minimum Improvements. Developer, either directly or acting through one or more intermediary entities created by Developer pursuant to this Section, agrees to rehabilitate, construct and improve approximately 255,000 square feet of office/retail space on the Property at an estimated cost of Thirty Nine Million ($39,000,000) as follows: approximately 130,000 square feet to accommodate Employer's requirements (the Employer Minimum Improvements) and the balance for Developer's requirements (the Developer Minimum Improvements) (referred to collectively as the Minimum Improvements). For purposes of the foregoing, Developer may form one or more corporations or limited liability companies for the purpose of obtaining new market and historic tax credits in connection with the construction of the Minimum Improvements, and may transfer the Property to such an intermediary entity, so long as the Developer retains effective control of any and all such intermediate entities and the charter documents for such entities and the terms of such any such transfer of the Property are approved by the City Manager. The Developer shall remain fully responsible for all of its obligations under this Agreement, notwithstanding any transfer of the Property or the creation of such intermediary entities. Section 2. Amendment of Subsection 3.3(1). Subsection 3.3(1) of the Original Agreement is hereby amended by deleting the existing provision and substituting the following as a new subsection 3.3(1): (1) City shall provide guarantees, in the forms attached hereto as Exhibit D (collectively, the Guaranty), on behalf of certain entities, including but not limited to Developer, for the purpose of securing equity investments and loans in order to fmance the rehabilitation, construction and improvement of the Property (collectively, the Minimum Improvements Loan), in the aggregate maximum principal amount of not to exceed $25,000,000. In consideration for the Guaranty, Developer agrees that any grants and tax credits received by Developer or which accrue to the benefit of Developer or the Property shall be applied to the balance of the principal of the Minimum Improvements Loan or to pre-Minimum Improvements Loan development costs. Section 3. Amendment of Guaranty. The form of Guaranty Agreement attached to the Original Agreement as Exhibit D is hereby amended by deleting the existing Exhibit D and substituting the attached Exhibit D. Section 4. Ratification. All. other provisions of the Original Agreement are hereby ratified, confirmed and approved. CITY OF DUBUQUE, IOWA By: Roy D. Buol, Mayor ATTEST: By: Jeanne F. Schneider, City Clerk DUBUQUE INITIATIVES By: William H. Callahan, President EXHIBIT D REVISED FORMS OF GUARANTY AGREEMENT DCORNELL/ 610219.1 /MSWord\10422.086 GUARANTY AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA, AS GRANTOR AND DUBUQUE BANK & TRUST COMPANY (Leverage/FHTC Bridge/IBM Loans) THIS GUARANTY AGREEMENT is made and entered into as of 2009 ("the Guaranty"), by and between the City of Dubuque, Iowa, a municipal corporation duly organized and existing under the laws of the State of Iowa and acting pursuant to Chapters 15A and 403 of the Code of Iowa, as amended ("Guarantor"), and Dubuque Bank & Trust Company ("DB&T"), as lead lender, for itself and the assignees and/or participants of the Loan ("Banks"). WITNESSETH: WHEREAS, Banks intend to make loans to .Roshek Building Investment Fund, LLC ("Borrower") in the aggregate principal amount of not to exceed $ (together, "the Loan"), pursuant to a Loan Agreement dated as of , 2009 between DB&T and Borrower ("the Agreement"); and WHEREAS, the proceeds derived from the Loan shall be used by the Borrower to make qualified equity investments in certain community development entities that will make qualified low income community investment loans to Roshek Building QALICB, LLC, which qualified low income community investment loans will be applied to the payment of costs associated with the rehabilitation, renovation, and improvement of office/retail space in the Roshek Building located generally at 700 Locust Street, Dubuque, Iowa ("the Project"), in fulfillment of the obligations of Dubuque Initiatives ("DI") under that certain Development Agreement dated February 17, 2009 between and among Guarantor and DI ("the Development Agreement"); and WHEREAS, Guarantor desires that Banks make the Loan and is willing to enter into this Guaranty in order to secure the payment of the Loan and as an inducement to DB&T to enter into the Agreement. NOW, THEREFORE, in consideration of DB&T entering into the Agreement and as an inducement to Banks to make the Loan, Guarantor does hereby, subject to the terms hereof, covenant and agree with DB&T as follows: SECTION 1. REPRESENTATIONS AND WARRANTIES OF GUARANTOR. Guarantor hereby represents and warrants: 1.1. It is a municipal corporation under the laws of the State of Iowa with the power to enter into this Guaranty and has duly authorized the execution and delivery of this Guaranty; and neither this Guaranty nor the agreements herein contained or the transactions contemplated hereby contravene or constitute a default under any agreement, instrument or indenture or any other agreement or requirement of law by which Guarantor is bound. 1.2. This Agreement, upon execution and delivery by Guarantor (assuming due authorization, execution and delivery by DB&T, is a valid and legally binding instrument of Guarantor, enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. 1.3 The undertaking of the Project by Borrower pursuant to the Development Agreement is in the vital and best interests of Guarantor and in accord with the public purposes and provisions of the applicable federal, state and local laws and the requirements under which the Project has been undertaken and is being assisted, and the Development Agreement and this Guaranty are necessary to promote and further the economic development of the City of Dubuque, and will result in the creation and maintenance of jobs within the City, as authorized and defined in Section 15A.1 of the Code of Iowa, as amended. SECTION 2. COVENANTS AND AGREEMENTS. 2.1. Unconditional Guaranty. Guarantor hereby unconditionally and irrevocably guarantees to Banks that (a) the full and prompt payment of the principal on the Loan when and as the same shall become due, whether at the stated maturity thereof, by acceleration, or otherwise, and (b) the full and prompt payment of all interest on the Loan when and as the same shall become due. All payments by Guarantor shall be paid in lawful money of the United States of America. Each and every default in payment of the principal of or interest on the Loan shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. 2.2. Notice to Guarantor to Perform Under Guaranty. If Borrower should at any time fail to make any of the payments required under the Agreement as and when said payments become due and. payable, Guarantor hereby unconditionally covenants that it shall make said payments within thirty (30) days after receipt by Guarantor of written notice of such failure to pay from DB&T. 2.3. Guaranty to Remain in Force Until Full Payment. The obligations of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable and shall remain in full force and effect until the aggregate principal amount of the Loan outstanding and all interest due thereon shall have been paid in full and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to, or the consent of, Guarantor. 2 (1) the compromise, settlement, release or termination of any or all of the obligations, covenants or agreements of Borrower under the Agreement; (2) the failure to give notice to Guarantor of the occurrence of an event of default under the terms and provisions of this Guaranty or the Agreement; (3) the assignment, transfer or mortgaging or the purported assignment, transfer or mortgaging of all or any part of the interest of Borrower in the Project or any failure of title with respect to Borrower's interest in the Project; (4) the waiver of the payment, performance or observance by Borrower or Guarantor of any of the obligations, covenants or agreements of them contained in the Agreement or this Guaranty; (5) the extension of the time for payment of any principal of or interest on the Loan or under this Guaranty or of the time for performance of any other obligations, covenants or agreements under or arising out of the Agreement or this Guaranty or the extension or the renewal of either thereof; (6) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Agreement; (7) the taking or the omission of any of the actions referred to in the Agreement and any actions under this Guaranty; (8) any failure, omission, delay or lack on the part of DB&T to enforce, assert or exercise any right, power or remedy conferred on DB&T in this Guaranty or the Agreement, or any other act or acts on the part of Banks; (9) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting Guarantor or Borrower or any of the assets of them, or any allegation or contest of the validity of this Guaranty in any such proceeding; (10) to the extent permitted by law, the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty by operation of law; (11) .the default or failure of Guarantor fully to perform any of its obligations set forth in this Guaranty, provided that the specific enumeration of .the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this paragraph that the obligation of 3 Guarantor shall be absolute, unconditional and irrevocable to the extent herein specified and shall not be discharged, impaired or varied except by the payment of the principal of and interest on the Loan in accordance with the terms of the Agreement. Without limiting any of the other terms or provisions hereof, it is understood hereunder, there shall be no obligation on the part of Banks to resort in any manner or form for payment to Borrower or to any other person, firm or corporation, their properties or estates. 2.4. Liability Not Affected by Bankruptcy. Without limiting the foregoing, it is specifically understood that any modification, limitation, or discharge of the liability of Guarantor hereunder arising out of or by virtue of any bankruptcy; arrangement, reorganization or similar proceeding for relief of debtors under Federal or State law hereafter initiated by or against Guarantor shall not affect, modify, limit, or discharge the liability of Guarantor hereunder in any manner whatsoever and this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to-the same extent and with the same force and effect as if any such proceedings had not been instituted; and it is the intent and purpose of this Guaranty and the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding and the Guarantor agrees that it shall be liable for an amount equal to the full amount of payments payable under the terms of the Agreement, irrespective and without regard to any modification, limitation, or discharge of the liability of the Guarantor that may result from any such proceeding. 2.5. Right to Proceed Against Guarantor. (a) In the event of a default in the payment of principal of the Loan when and as'the same shall become due, whether at the stated maturity thereof, by acceleration, or otherwise, or in the event of a default in the payment of any interest on the Loan when and as the same shall become due, DB&T may, in its sole discretion, have the right to proceed first and directly against Guarantor under this Guaranty without proceeding against or exhausting any other remedies which it may have and without resorting to any other security held by Banks. (b) DB&T represents and warrants to Guarantor and agrees with Guarantor that (i) pursuant to its arrangements with the Banks, DB&T is and shall be the sole and exclusive party entitled to pursue any claims against Guarantor that may arise under this Guaranty, notwithstanding any rights Banks may have as third party beneficiaries of this Guaranty, and (ii) DB&T shall indemnify and hold the City harmless from any breach of the representations, warranties and agreements set forth in clause (i) of this subsection, including but not limited to the reasonable costs and expenses (including attorneys' fees) incurred by City in connection with any claims made by parties other than DB&T under this Guaranty. 2.6. Waiver of Notice and Reliance on Guaranty. Guarantor expressly waives notice from Banks of their acceptance and reliance on this Guaranty. Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees, which may be incurred in enforcing or attempting to enforce this Guaranty following 4 any default on the part of Guarantor hereunder, whether the same shall be enforced by suit or otherwise. 2.7 Limitation on Guaranty. DB&T hereby acknowledges that, pursuant to Section 3.3 of the Development Agreement, the Guarantor, in addition to guaranteeing the Loan, also is guaranteeing that certain loan from. DB&T and the Banks to DI in the principal amount of not to exceed $ ("the SHTC Bridge Loan"), and all such additional .financing shall be used connection with the rehabilitation, construction and improvement Project. Notwithstanding anything contained herein or in the Agreement to the contrary, the aggregate maximum principal amount of the obligation of the Guarantor under this Guaranty, and the guaranty of the SHTC Bridge Loan shall not exceed Twenty Five Million and No/100 Dollars ($25,000,000.00); provided, however, that the foregoing shall not limit Guarantor's obligation to DB&T under Section 2.6 hereof. SECTION 3. MISCELLANEOUS. 3.1. Obligations Absolute and Unconditional. The obligations of Guarantor hereunder shall arise absolutely, unconditionally and irrevocably, when the Loan shall have been made to Borrower by Banks. 3.2. Nonexclusive Remedy; Notice; Waiver; Amendment. No remedy herein conferred upon or reserved to DB&T is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Guaranty or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default, omission or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof; but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle DB&T to exercise any remedy reserved to it in this Guaranty, it shall not be necessary to give any notice, other than such notice as may be herein expressly required. In the event any provision contained in this Guaranty should be breached by Guarantor and thereafter duly waived by DB&T, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver, amendment, release or modification of this Guaranty shall be established by conduct, custom or course of dealing, but solely by an instrument in writing duly executed by DB&T. 3.3. Annual Audit and Financial Statements. Guarantor shall keep proper books of record and account in accordance with generally accepted principles of accounting as the same apply to governmental entities and will furnish to Banks as soon as available and in any event within 180 days after the close of each fiscal. year of Guarantor, a copy of the annual financial statements of Guarantor for such fiscal year all as prepared and certified by a firm of independent certified public accountants. 5 3.4. Entire Agreement. This Guaranty constitutes the entire agreement and supersedes all prior agreements between the parties with respect to the subject matter hereof and may be executed simultaneously in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 3.5. Severability. The invalidity or unenforceability of any one or more phrases, sentences, clauses or sections in this Guaranty shall not affect the validity or enforceability of the remaining portions of this Guaranty, or any part thereof. 3.6. Release. Upon full payment of the principal of and interest on the Loan in accordance with the Agreement, this Guaranty shall by its terms terminate and, upon request by Guarantor, DB&T shall release Guarantor from the provisions of this Guaranty in writing. 3.7. Applicable Law. This Guaranty shall be governed by and construed in accordance with the laws of the State of Iowa. [Remainder of Page Intentionally Left Blank] 6 IN WITNESS WHEREOF, Guarantor and DB&T have caused this Guaranty to be executed as of the date first above written. CITY OF DUBUQUE, IOWA DUBUQUE BANK & TRUST COMPANY By: Roy D. Buol, Mayor ATTEST: Jeanne F. Schneider, CMC, City Clerk GUARANTY AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA, AS GRANTOR AND DUBUQUE BANK & TRUST COMPANY (SHTC Bridge Loan) THIS GUARANTY AGREEMENT is made and entered into as of 2009 ("the Guaranty"), by and between the City of Dubuque, Iowa, a municipal corporation duly organized and existing under the laws of the State of Iowa and acting pursuant to Chapters 15A and 403 of the Code of Iowa, as amended ("Guarantor"), and Dubuque Bank & Trust Company ("DB&T"), as lead lender, for itself and the assignees and/or participants of the Loan ("Banks"). WITNESSETH: WHEREAS, Banks intend to make a loan to in the principal amount of not to exceed $ to a Loan Agreement dated as of Borrower ("the Agreement"); and Dubuque Initiatives ("Borrower") ("the Loan"), pursuant . 2009 between DB&T and WHEREAS, the proceeds derived from the Loan shall be used to fund a capital contribution Roshek Building, Inc., which shall make a corresponding capital contribution to Roshek Building QALICB, LLC ("the QALICB"), which capital contribution shall be used by the QALICB to pay costs associated with the rehabilitation, renovation, and improvement of office/retail space in the Roshek Building located generally at 700 Locust Street, Dubuque, Iowa ("the Project"), in fulfillment of the Borrower's obligations under that certain Development Agreement dated February 17, 2009 between and among Guarantor and Borrower ("the Development Agreement"); and WHEREAS, Guarantor desires that Banks make the Loan and is willing to enter into this Guaranty in order to secure the payment of the Loan and as an inducement to DB&T to enter into the Agreement. NOW, THEREFORE, in consideration of DB&T entering into the Agreement and as an inducement to Banks to make the Loan, Guarantor does hereby, subject to the terms hereof, covenant and agree with DB&T as follows: SECTION 1. REPRESENTATIONS AN® WARRANTIES OE GUA NTOR. Guarantor hereby represents and warrants: 1.1. It is a municipal corporation under the laws of the State of Iowa with the power to enter into this Guaranty and has duly authorized the execution and delivery of this Guaranty, and neither this Guaranty nor the agreements herein contained or the transactions contemplated hereby contravene or constitute a default under any agreement, instrument or indenture or any other agreement or requirement of law by which Guarantor is bound. 1.2. This Agreement,. upon execution and delivery by Guarantor (assuming due authorization, execution and delivery by DB&T, is a valid and legally binding instrument of Guarantor, enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. 1.3 The undertaking of the Project by Borrower pursuant to the Development Agreement is in the vital and best interests of Guarantor and in accord with the public purposes and provisions of the applicable federal, state and local laws and the requirements under which the Project has been undertaken and is being assisted, and the Development Agreement and this Guaranty are. necessary to promote and further the economic development of the City of Dubuque, and will result in the creation and maintenance of jobs within the City, as authorized and defined in Section 15A.1 of the Code of Iowa, as amended. SECTION 2. COVENANTS AN®AGREEMENTS. 2.1. Unconditional Guarantv. Guarantor hereby unconditionally and irrevocably guarantees to Banks that (a) the full and prompt payment of the principal on the Loan when and as the same shall become due, whether at the stated maturity thereof, by acceleration, or otherwise, and (b) the full and prompt payment of all interest on the Loan when and as the same shall become due. All payments by Guarantor shall be paid in lawful money of the United States of America. Each and every default in payment of the principal of or interest on the Loan shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. 2.2. Notice to Guarantor to Perform Under Guarantv. If Borrower should at any time fail to make any of the payments required under the Agreement as and when said payments become due and payable, Guarantor hereby unconditionally covenants that it shall make said payments within thirty (30) days after receipt by Guarantor of written notice of such failure to pay from DB&T. 2.3. Guarantv to Remain in Force Until Full Payment. The obligations of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable and shall remain in full force and effect until the aggregate principal amount of the Loan outstanding and all interest due thereon shall have been paid in full and such obligations shall not be affected,_modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to, or the consent of, Guarantor. 2 (1) the compromise, settlement, release or termination of any or all of the obligations, covenants or agreements of Borrower under the Agreement; (2) the failure to give notice to Guarantor of the occurrence of an event of default under the terms and provisions of this Guaranty or the Agreement; (3) the assignment, transfer or mortgaging or the purported assignment, transfer or mortgaging of all or any part of the interest of Borrower in the Project or any failure of title with respect to Borrower's interest in the Project; (4) the waiver of the payment, performance or observance by Borrower or Guarantor of any of the obligations, covenants or agreements of them contained in the Agreement or this Guaranty; (5) the extension of the. time for payment of any principal of or interest on the Loan or under this Guaranty or of the time for performance of any other obligations, covenants or agreements under or arising out of the Agreement or this Guaranty or the extension or the renewal of either thereof; (6) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Agreement; (7) the taking or the omission of any of the actions referred to in the Agreement and any actions under this Guaranty; (8) any failure, omission, delay or lack on the part of DB&T to enforce, assert or exercise any right, power or remedy conferred on DB&T in this Guaranty or the Agreement, or any other act or acts on the part of Banks; (9) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting Guarantor or Borrower or any of the assets of them, or any allegation or contest of the validity of this Guaranty in any such proceeding; (10) to the extent permitted by law, the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty by operation of law; (11) the default or failure of Guarantor fully to perform any of its obligations set forth in this Guaranty, provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this paragraph that the obligation of Guarantor shall be absolute, unconditional and irrevocable to the extent 3 herein specified and shall not be discharged, impaired or varied except by the payment of the principal of and interest on the Loan in accordance with the terms of the Agreement. Without limiting any of the other terms or provisions hereof, it is understood hereunder, there shall be no obligation on the part of Banks to resort in any manner or form for payment to Borrower or to any other person, firm or corporation, their properties or estates. 2.4. Liability Not .Affected by Bankruptcy. Without limiting the foregoing, it is specifically understood that any modification, limitation, or discharge of the liability of Guarantor hereunder arising out of or by virtue of any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under Federal or State law hereafter initiated by or against Guarantor shall not affect, modify, limit, or discharge the liability of Guarantor hereunder in any manner whatsoever and this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceedings had not been instituted; and it is the intent and purpose of this Guaranty and the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding and the Guarantor agrees that it shall be liable for an amount equal to the full amount of payments payable under the terms of the Agreement, irrespective and without regard to any modification, limitation, or discharge of the liability of the Guarantor that may result from any such proceeding. 2.5. Right to Proceed Against Guarantor. In the event of a default in the payment of principal of the Loan when and as the same shall become due, whether at the stated maturity thereof, by acceleration, or otherwise, or in the event of a default in the payment of any interest on the Loan when and as the same shall become due, DB&T may, in its sole discretion, have the right to proceed first and directly against Guarantor under this Guaranty without proceeding against or exhausting any other remedies which it may have and without resorting to any other security held by Banks. (b) DB&T represents and warrants to Guarantor and agrees with Guarantor that (i) pursuant to its arrangements with the Banks, DB&T is and shall be the sole and exclusive party entitled to pursue any claims against Guarantor that may arise under this Guaranty, notwithstanding any rights Banks may have as third party beneficiaries of this Guaranty, and (ii) DB&T shall "indemnify and hold the City harmless from any breach of the representations, warranties and agreements set forth in clause (i) of this subsection, including but not limited to the reasonable costs and expenses (including attorneys' fees) incurred by City in connection with any claims made by parties other than DB&T under this Guaranty. 2.6. Waiver of Notice and Reliance on Guaranty. Guarantor expressly "waives notice from Banks of their acceptance and reliance on this Guaranty. Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees, which may be incurred in enforcing or attempting to enforce this Guaranty following 4 any default on the part of Guarantor hereunder, whether the same shall be enforced by suit or otherwise. 2.7 Limitation on Guaranty. DB&T hereby acknowledges that, pursuant to Section 3.3 of the Development Agreement, the Guarantor, in addition to guaranteeing the Loan, also is guaranteeing (a) that certain loan from DB&T and the Banks to the Roshek Building Investment Fund, LLC (the "Fund") in the principal amount of not to exceed $ ("the Leverage Loan"), (b) that certain loan from DB&T and Banks to the Fund in the principal amount of not to exceed $ (the "IBM Loan"), and (c) that certain loan from DB&T and the Banks to the Fund in the principal amount of not to exceed $ ("the FHTC Bridge Loan"), and all such additional financing shall be used connection with the rehabilitation, construction and improvement Project. Notwithstanding anything contained herein or in the Agreement to the contrary, the aggregate maximum principal amount of the obligation of the Guarantor under this Guaranty, the guaranty of the Leverage Loan, the guaranty of the IBM Loan, and the guaranty of the FHTC Bridge Loan shall not exceed Twenty Five Million and No/100 Dollars ($25,000,000.00); provided, however, that the foregoing shall not limit Guarantor's obligation to DB&T under Section 2.6 hereof. SECTION 3. MISCELLANEOUS. 3.1. Obligations Absolute and Unconditional. The obligations of Guarantor hereunder shall arise absolutely, unconditionally and irrevocably, when the Loan shall have been made to Borrower by Banks. 3.2. Nonexclusive Remedy; Notice; Waiver; Amendment. No remedy herein conferred upon or reserved to DB&T is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy-given under this Guaranty or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default, omission or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof; but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle DB&T to exercise any remedy reserved to it in this Guaranty, it shall not be necessary to give any notice, other than such notice as may be herein expressly required. In the event any provision contained in this Guaranty should be breached by Guarantor and thereafter duly waived by DB&T, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver, amendment, release or modification of this Guaranty shall be established by conduct, custom or course of dealing, but solely by an instrument in writing duly executed by DB&T. 3.3. Annual Audit and Financial Statements. Guarantor shall keep proper books of record and account in accordance with generally accepted principles of accounting as the same apply to governmental entities and will furnish to Banks as soon as available and in any event within 180 days after the close of each fiscal year 5 of Guarantor, a copy of the annual financial statements of Guarantor for such fiscal year all as prepared and certified by a firm of independent certified public accountants. 3.4. Entire Agreement. This Guaranty constitutes the entire agreement and supersedes all prior agreements between the parties with respect to the subject matter hereof and may be executed simultaneously in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 3.5. Severability. The invalidity or unenforceability of any one or more phrases, sentences, clauses or sections in this Guaranty shall not affect the validity or enforceability of the remaining portions of this Guaranty, or any part thereof. 3.6. Release. Upon full payment of the principal of and interest on the Loan in accordance with the Agreement, this Guaranty shall by its terms terminate and, upon request by Guarantor, DB&T shall release Guarantor from the provisions of this Guaranty in writing. 3.7. Applicable Law. This Guaranty shall be governed by and construed in accordance with the laws of the State of Iowa. [Remainder of Page Intentionally Left flank] 6 IN WITNESS WHEREOF, Guarantor and DB&T have caused this Guaranty to be executed as of the date first above written. CITY OF DUBUQUE, IOWA DUBUQUE BANK & TRUST COMPANY By: Roy D. Buol, Mayor ATTEST: Jeanne F. Schneider, CMC, City Clerk